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MR. WF.BSTER S SPEECH 



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THE PRESIDENT'S PROTEST 



UEtlVEUEU 



IN THE SENATE OF THE UNITED STATES, 



May 7, 1834. 



WASHINGTON: 

PRINTED BY GALES AXD SEATOV. 
1834 



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SPEECH. 

Mr, President: 

I feel, sir, the niagnilmlc of this que.sliun. We are tuiiiing to a vote 
which canuot fail to produce important effects on the cliaractor of the Sen- 
ate, and the character of the Government. 

Unhappily, sir, the Senate finds itself involved in a controveisy with the 
President of the United States; a man, who has rendered most distingiiisiied 
services to iiis country, has hitherto possessed a degree of popular favor, per- 
haps never excelled, and whose honesty of motive, and integrity of purpose, 
are still maintained by those who admit that his administration has fallen into 
tamentable errors- 

On someoftlK', interesting questions, in regard to which tiie President and 
Senate hold opposite opinions, the more popular branch of the Legislature 
concurs with the Executive, It is not to be concealed that the Senate is 
engaged against imposing odds. It can sustain itself only by its own pru- 
dence and the justice of its cause. It has no patronage by which to secure 
friends; it can raise up no advocates through the dispensation of favors, for it 
lias no favors to dispense. Its very constitution, as a body, whose members are 
elected for a long term, is capable of being rendered obnoxious, and is daily 
•made subject of opprobrious reniark. It is already denounced as indej3endent 
of the people, and aristocratic. Nor is it, like the other House, powerful in its 
numbers; not being, like that, so large as that its members com'e constantly 
in direct and sympathetic contact with the whole people. Under these dis- 
advantages, sir, which, we may be assured, will be pressed and urged to the 
utmost length, there is but one course for us. The Senate must stand on its 
rendered reasons. It must put forth the grounds of its proceedings, and it 
must then rely on the intelligence and patriotism of the people to carry it 
through the contest. 

As an individual member of the Senate, it gives me great pain to be en- 
gaged in such a conflict with the Executive Government, The occurrences 
of the last session are fresh in all our recollections; and, having felt it to be 
sny duty, at that time, to give my cordial support to highly important measures 
of the administration, I ardently hoped that nothing might occur to place me, 
afterwards, in an attitude of opposition. In all respects, and in every way, 
it would have been far more agreeable to me to have found nothing in the 
measures of the Executive Government which I could not cheerfully sup- 
port. The present occasion of difference has not been sought or made by 
me. It is thrust upon me, in opposition to strong opinions and wishes, on my 
part not concealed. The interference with the public deposites dispelled 
all hope of continued concurrence with the administration; and was a mea- 
sure so uncalled for, so unnecessary, and, in my judgment, so illegal and inde- 
fensible, that, with whatever reluctance it might be opposed, opposition was 
unavoidable. 



The paper before us lias grown out of the consequences of this interfe- 
rence. It is a paper which cannot be treated with indifference. The doc- 
trines which it advances, the circumstances which have attended its trans- 
mission to the Senate, and the manner in which the Senate may now dispose ' 
of it, will form a memorable era in the history of the Government. We are 
either to enter it on our journals, assent to its sentiments, and submit to its 
rebuke; or we must answer it, with the respect due to the Chief Magistrate, 
but with such animadversion on its doctrines as they deserve, and with the 
firmness imposed upon us by our public duties. 

I shall proceed, then, sir, to consider the circumstances which gave rise to 
this protest; to examine the principles which it attempts to establish; and 
to compare those principles with the constitution and the laws. 

On the 28th day of March, the Senate adopted a resolution declaring that 
" in the late executive proceedings in relation to the public revenue, the Pre- 
sident had assumed a potver not conferred by the constitution and laws, but 
in derogation of both." In that resolution I concurred. 

It is not a direct question, now again before us, whether the President 
really had assumed such illegal power; that point is decided, so far as the 
Senate ever can decide it. But the protest denies that, supposing the Presi- 
dent to have assumed such illegal power, the Senate could properly pass the 
resolution; or, what is the same thing, it denies that the Senate could, in this 
way, express any opinion about it. It denies that the Senate has any right, 
by resolution, in this or any other case, to express disapprobation of the 
President's conduct, let that conduct be what it may; and this, one of the lead- 
ing doctrines of the protest, I propose to consider. But, as I concurred in the 
resolution of the 28th of March, and did not trouble the Senate, at that time, 
with any statement of my own reasons, I will avail myself of this opportunity 
to explain, shortly, what those reasons were. 

In the first place, then, I have to say, that I did not vote for the resolu- 
tion on the mere ground of the removal of Mr. Duane from the office of Se- 
cretary of the Treasury. Although I disapprove of the removal altogether, 
yet the power of removal does exist in the President, according to the es- 
tablished construction of the constitution; and, therefore, although, in a par- 
ticular case, it may be abused, and, in my opinion, was abused in this case, 
yet its exercise cannot be justly said to be an assumption or usurpation. We 
must all agree that Mr. Duane is out of office. He has, therefore, been re- 
naoved by a power constitutionally competent to remove him, whatever may 
be thought of the exercise of that power, under the circumstances of the case. 

If, then, the act of removing the Secretary be not the assumption of power 
which the resolution declares, in what is that assumption founds Before 
giving a precise answer to this inquiry, allow me to recur to some of the 
principal previous events. 

At the end of the last session of Congress, the public moneys of the 
United States were still in their proper place. That place was fixed by the 
law of the land, and no power of change was conferred on any other human 
being than the Secretary of the Treasury. On him the power of change was 
conferred, to be exercised by himself, if emergency should arise, and to be 
exercised for reasons which he was bound to lay before Congress. No other 
officer of the Government had the slightest pretence of authority to lay his hand 
on these moneys for the purpose of changing the place of their custody. All 
the other heads of Departments together could not touch them. The President 
could not touch them. The power of change was a trust confided to the discre- 



hon of the Sexietary, and to hjs discretion alone. The President had nc 
more authority to take upon himself this duty, thus assigned expressly by law 
to the Secretary, than he had to make the annual report to Congress, or the 
annual commercial statements, or to perform any other service which the law 
specially requires of the Secretary. He might just as well sign the warrants 
for moneys, in the ordinary daily disbursements of Government, instead of 
the Secretary. The statute had assigned the especial duty of removing th*' 
deposites, if removed at all, to the Secretary of the Treasury, and to him 
alone. The consideration of the propriety, or necessity of removal, must be 
the consideration of the Secretary; the decision to remove, his decision; and 
the act of removal, his act. 

Now, sir, on the 18th day of September last, a resolution was taken to 
remove these deposites from their legislative (that is to say, their legal) cus- 
tody. Whose resolution teas this! On the 1st day of October they were 
removed. And hy whose power was this done? The papers necessary to 
accomplish the removal (that is, the orders and drafts) are, it is true, signed 
by the Secretary. The President's name does not appear to them; nor does 
the Secretary, in any of them, recite or declare that he does the act by 
direction of the President, or on the President's responsibility. In form, the 
whole proceeding is the proceeding of the Secretary, and, as such, had the legal 
effect. The deposites were removed. But whose act was it in truth and reali- 
ty? Whose will accomplished it? On whose responsibility was it adopted? 

These questions are all explicitly answered by the President himself, in 
the paper, under his own hand, read to the cabinet on the 18th of September, 
and published by his authority. In this paper the President declares, in so 
many words, that he begs his cabinet to consider the proposed measure as his 
oicn; that its responsibility has been assumed by him; and that he names the 
first day of October as a period proper for its execution. 

Now, sir, it is precisely this which I deem an assumption of power not 
conferred by the constitution and laws. I think the law did not give this 
authority to the President, nor impose on him the responsibility of its exer- 
cise. It is evident that in this removal the Secretary was in reality nothing 
but the scribe: he was the pen in the President's hand, and no more. Nothing 
depended on his discretion, his judgment, or his responsibility. The removal, 
indeed, has been admitted and defended in the Senate, as the direct act of the 
President himself. This, sir, is what I call assumption of power. If the Pre- 
sident had issued an order for the removal of the deposites in his own name, 
and under his own hand, it would have been an illegal order, and the Bank 
would not have been at liberty to obey it. For the same reason, if the 
Secretary's order had recited that it was issued by the President's direction, 
and on the President's authority, it would have shown, on its face, that it was 
illegal and invalid. No one can doubt that. The act of removal, to be law- 
ful, must be the bona fide act of the Secretary; his judgment, the result of 
Ais deliberations, the volition o^ his mind. All are able to see the diflerence 
between the power to remove the Secretary from office, and the power to 
control him, in all or any of his duties, while in office. The law charges 
the officer, whoever he may be, with the performance of certain duties. The 
President, with the consent of the Senate, appoints an individual to be such 
officer, and this individual he may remove, if he so please; but, until removed, 
he is the officer, and remains charged with the duties of his station; duties 
which nobody else can perform, and for the neglect or violation of which he 
is liable to be impeached. 



The distinction is visible and broad between tlie power of removal and tne 
power to control an officer not removed. The President, it is true, may 
terminate his political life; but he cannot control his powers and lunction?, 
and act upon liim as a mere machine, while he is allowed to live. This power 
of control and direction, no where given, certainly, by any express provision ot 
the constitution or laws, is derived, by those who maintain it, irom the right 
of removal; that is to say, it is a constructive power. But the right ol 
removal itself is but a constructive power: it has no express waiTant in the 
constitution. A very important power, then, is raised by construction, in 
the first place; and, being thus raised, it becomes a fountain, out ot w ncli 
other important powers, raised also by construction, are to be supplied. 1 heie 
is no little danger that such a mode of reasoning may be carried too tar. it 
cannot be maintained that the power of direct control necessarily flows from 
the power of removal. Suppose it had been decided in 1789, when the 
question was debated, that the President does not possess the power of removal: 
will it be contended, that in that case his right of interference with the acts and 
duties of executive officers would be less than it now is? The reason of the 
thing would seem to be the other way. If the President may remove an 
incumbent when he becomes satisfied of his unfaithfulness and incapacity, 
there would appear to be less necessity to give him also a right of control, 
than there would be if he could not remove him. 

We may try this question by supposing it to arise in a judicia proceeding. 
If the Secretary of the Treasury were impeached for removing the deposites 
could he justify himself by saying that he did it by the President . direction? 
Tf he could, then no executive officer could ever be impeached who obeys 
the President; and the whole notion of making such ofiicers mipeachable at 
all would be farcical. If he could not so justify himself, (and all will allow 
he could not,) the reason can only be that the act of removal is his own act: 
the power, a power confided to him, for the just exercise of which the law 
looks to his discretion, his honesty, and his direct responsibility. 

Now, sir, the President wishes the world to understand that he himsell 
decided on the question of the removal of the deposites; that he took the 
whole responsibility of the measure upon himself; that he wished it to be con- 
sidered Ms own act; that he not only himself decided that the thing should 
be done, but that he regulated its details also, and named the day for carrying 

it into effect. ^ , . . r 

I have always entertained a very erroneous view of the partition of powers, 
and of the true nature of official responsibility under our constitution, it this 
be not a plain case of the assumption of power. 

The Legislature had fixed a place, by law, for the keeping of he public 
money. They had, at the same time, and by the same law, created and conferred 
a power of removal, to be exercised contingently. This power they had vest- 
ed in the Secretary, by express words. The law did not say that the depos- 
ites should be made in the Bank unless the President should order otherwise; 
but it did say that they should be made there vnkss the Secretary of the 
Treasury slwnld order otherwise. I put it to the pain sense and common 
candor of all men, whether the discretion which was thus to be exercised over 
the subject was not the Secretary's own personal discretion; and whether, there- 
fore, the interposition of the authority of another, acting directly and conclu- 
sively on the subject, deciding the whole question, even in its particulars 
and details, be not an assumption of power? , i f . 

The Senate regarded this interposition as an encroachment, by the cxecu- 



tive, on otlier bra-nclies of llio Govornnienl; as an inlcrforenco with the legis- 
lative disposhion of thepuhlic treasure. It was strongly and forcibly urged, yes- 
terday, by the honorable member from South Carolina, that the true and only 
mode of preserving any balance of power, in mixed governments, is to keep 
an exac't balance. This is very true, and to this end encroachment must be 
resisted at the first step. The question is, therefore, whether, upon the true 
principles of the constitution, this exercise of power by the President can be 
justified. AVliether the consequences be prejudicial or not, if there bo an 
illegal exercise of power, it is to he resisted in the proper manner. Even if 
no harm or inconvenience result from transgressing the boundary, the intrusion 
is not to be suffered to pass unnoticed. Every encroachment, great or small, 
is important enough to awaken the attention of those who are intrusted with 
the preservation of a constitutional Government. We are not to wait till 
great public mischiefs come, till the Government is overthrown, or liberty itself 
put in extreme jeopardy. We should not be worthy sons of out- fathers, were 
we so to reeard great questions aflectingthe general freedom. Those fathers 
accomplished the revolution on a strict question of principle. The Parlia- 
ment of Great Britain asserted a right to tax the colonies in all cases whatso- 
ever, and it was precisely on this question that they made the revolution turn. 
The amount of taxation was trifling, but the claim itself was inconsistent 
with liberty; and that was, in their eyes, enough. It was against the recital 
of an act of Parliament, rather than against any suffering under its enact- 
ments, that they took up arms. They went to war against a preamble. They 
fought seven years against a declaration. They poured out their treasures 
and their blood like water, in a contest, in opposition to an assertion, which those 
less sagacious and not so well schooled in the principles of civil liberty, would 
have regarded as barren phraseology, or mere parade of words. They saw in the 
claim of the British Parliament a seminal principle of mischief, the germ of 
unjust power; they detected it, dragged it forth from underneath its plausible 
disguises, struck at it, nor did it elude either their steady eye, or their well-direct- 
ed blow, till they had extirpated and destroyed it, to the smallest fibre. On this 
question of principle, while actual suffering was yet afar off, they raised their flag 
against a power to which, for purposes of foreign conquest and subjugation, 
Rome, in the height of her glory, is not to be compared; a power, which has dot- 
ted over the surface of the whole globe with her possessions and military posts, 
whose morning drum-beat, following the sun, and keeping company with the 
hours, circles the earth daily with one continuous and unbroken strain of the 
martial airs of England. 

The necessity of holding strictly to the principle upon which free Govern- 
ments are constructed, and to the precise lines which fix the partitions of pow- 
er between different branches, is as plain, if not as cogent, as that of resisting, 
as our fathers did, the strides of the parent country upon the rights of the 
colonies; because, whether the power which exceeds its just limits be foreign 
or domestic, whether it be the encroachment of all branches on the rights of 
the people, or that of one branch on the rights of others, in either case the 
balanced and well-adjusted machinery of free government is disturbed, and, 
if the derangement go on, the whole system must fall. 

But the case before us is not a case of merely theoretic infringement, nor 
is it one of trifling importance. Far otherwise. It respects one of the high- 
est and most important of all the powers of Government; that is to say, the 
custody and control of the public money. The act of removing the depos- 
ites, which I now consider as the President's act. and which his friends on this 



8 

floor defend as his act, tuok the national purse from beneath the security anS 
guardianship of the law, and disposed of its contents, in parcels, in such places 
of depositc as he chose to select. At this very moment every dollar of the 
public treasure is subject, so far as respects its custody and safe keeping, to 
his unlimited control. We know not where it is to-day; still less do we know 
where it may be to-morrow. 

But, Mr. President, this is not all. There is another part of the case^ 
which has not been so much discussed, but which appears to me to be still 
more indefensible in its character. It is something which may well teach us 
the tendency of power to move forward, with accelerated pace, if it be al- 
lowed to take the first step. The Bank of the United States, in addition to 
the services rendered to the Treasury, gave for its charter, and for the use 
of the public deposites, a bomis, or outright sum of one million and a half of 
dollars. This sum was paid by the Bank into the Treasury, soon after the 
commencement of its charter. In the act which passed both Houses for 
renewing the charter, in 1832, it was provided that the Bank, for the same 
consideration, should pay two hundred thousand dollars a year, during the 
period for which it was proposed to renew it. A similar provision is in the 
bill which I asked leave to introduce some weeks ago. Now, sir, this shows 
that the custody of the deposites is a benefit, for which a bank may well 
afford to pay a large annual sum. The banks which now hold the deposite;» 
pay nothing to the public; they give no bonus, they pay no annuity. But 
this loss of so much money is not the worst part of the case, nor that which 
ought most to alarm us. Although they pay nothing to the public, they do 
pay, nevertheless, such sums, and for such uses, as may be agreed upon 
between themselves and the Executive Government. We are officially in- 
formed that an officer is appointed by the Secretary of the Treasury to 
inspect or superintend these selected banks; and-this officer is compensated by a 
salary fixed by the Executive, agreed to by the banks, and paid by them. I 
ask, sir, if there can bo a more irregular, or a more illegal transaction than 
this? Whose money is it out of which this salary is paid? Is it not money 
justly due to the United States, and paid, because it is so due, for the advan- 
tage of holding the deposites? If a dollar is received on that account, is not 
its only true destination into the general treasury of the Government? And 
who has authority, without law, to create an office, to fix a salary, and 
to pay that salary out of this money? Here is an inspector, or super- 
visor of the deposite banks. But what law has provided for such an officer? 
What commission has he received? Who concurred in his appointment? 
What oath does he take? How is he to be punished, or impeached, if h« 
colludes with any of these banks to embezzle the public money, or defrawl 
the Government? The value of the use of this public money to the deposite 
banks is probably tw6 hundred thousand dollars a year; or, if less than tkaty 
it is yet, certainly, a very great sum. May the President appoint whatever 
officers he pleases, with whatever duties he pleases, and pay them as much, 
as he pleases out of these moneys thus ])aid by the ban1<s, for the sake of 
having the deposites? 

Mr. President, the executLre claim of power is exactly this, that tte Pre- 
sident may keep the money of the public in whatever banks he chosses, on' 
whatever terms he chooses, and to apply the sums which these banks are will- 
ing to pay for its use to whatever purposes he chooses. These sums are not to- 
come into the general treasury. They are to be appropriated befose they get 
there; they are never to bo brought under the control of Congress^ they are tO' 



be paid to officers and agents not known to the law, not nominated to the 
Senate, and responsible to nobody but the Executive itself. I ask gentlemen, 
if all this be lawful? Are they prepared to defend it] Will they stand up 
and justify it] In my opinion, sir, it is a clear and a most dangerous assump- 
tion of power. It is the creation of office, without law; the appointment to 
office, without consulting the Senate; the establishment of a salary, without 
law; and the payment of that salary out of a fund which itself is derived from 
the use of the public treasures. This, sir, is my other season for concurring 
in the vote of the 28th of March; and on these grounds I leave the propriety 
of that vote, so far as I am concerned with it, to be judged of by the country. 
But, sir, the President denies the power of the Senate to pass any such reso- 
lution, on any ground whatever. Suppose the declaration contained in the 
resolution to be true; supposj the President had, in fact, assumed powers 
not granted to him; does the Senate possess the right to declare its opinion, 
affirming this fact, or does it not? I maintain the Senate does possess such 
a power; the President denies it. 

Mr. President, we need not look far, nor search deep, for the foundation 
of this right in the Senate. It is clearly visible, and close at hand. In the 
first place, it is the right of self-defence. In the second place, it is a right 
founded »n the duty of representative bodies, in a free Government, to defend 
the public liberty against encroachment. We must presume that the Senate 
honestly entertained the opinion expressed in the resolution of the 28th of 
March; and, entertaining that opinion, its right to express it is but the neces- 
sary consequence of its right to defend its own constitutional authority, as 
one branch of the Government. This is its clear right, and this, too, is its 
imperative duty. 

If one, or both, the other branches of the Government happen to do that 
which appears to us inconsistent with the constitutional rights of the Senate, 
will any one say that the Senate is yet bound to be passive, and to be silent; 
to do nothing, and to say nothing] Or if one branch appears to encroach on 
the rights of the other two, have these two no power of remonstrance, com- 
plaint, or resistance] Sir, the question may be put in a still more striking 
form. Has the Senate a right to have an opinion in a case of this kind] If 
it may have an opinion, how is that opinion to be ascertained but by 
resolution and vote] The objection must go the whole length; it must main- 
tain that the Senate has not only no right to express opinions, but no right 
to form opinions, on the conduct of the Executive Government, though in mat- 
ters intimately affecting the powers and duties of the Senate itself. It is not 
possible, sir, that such a doctrine can be maintained for a single moment. 
All political bodies resist what they deem encroachments, by resolutions 
expressive of their sentiments, and their purpose to resist such encroach- 
ments. When such a resolution is presented for its consideration, the 
questioti is, whether it be true; not whether the body has authority to pass it, 
admitting it to be true. The Senate, like other public bodies, is perfectly 
justifiable in defending, in this mode, either its legislative or executive autho- 
rity. The usages of Parliament, the practice in our State Legislatures and 
Assemblies, both before and since the Revolution, and precedents in the 
Senate itself, fully maintain this right. The case of the Panama mission 
is in point. In that case, Mr. Branch, from North Carolina, introduced a 
resolution, which, after reciting that the President, in his annual message, and 
in his communication to the Senate, had asserted that he possessed an autho- 
rity to make certain appointments, although the appointments had not been 
made, went on to declare that " a silent acquiescence, on the part of this body. 



10 

may, at some future time, be draton into dangerous precedent;'''' ?l\\(\ to resolve, 
therefore, that the President does not possess the right or power said to be 
claimed by him. This resolution was discussed, and finally laid on the table. 
But the question discussed was, whether the resolution was correct, in fact 
and principle; not whether the Senate had any right to pass such resolution. 
So far as I remember, no one pretended that, if the President had exceeded 
his authority, the Senate might not so declare by resolution. No one ven- 
tured to contend tha;*, whether the rights of the Senate were invaded or nof, 
the Senate must hold its peace. 

The protest labors strenuously to show that the Senate adopted the reso- 
lution of the 28th of March, under its judicial authority. The reason of 
this attempt is obvious enough. If the Senate, in its judicial character, has 
been trying the President, then he has not had a regular and formal tiial; 
and, on that ground, it is hoped, the public sympathy may be moved. Bui 
the Senate has acted not in its judicial, but in its legislative capacity. As a 
legislative body, it has defended its own just authority, and the authority of 
the other branch of the Legislature. Whatever attacks our own rights and pri- 
vileges, or whatever encroaches on the power of both Houses, we may o})- 
pose and resist, by declaration, resolution, or other similar proceeding. If 
we look to the books of precedents, if we examine the journals of legislative 
bodies, we find, every where, instances of such proceedings. 

It is to be observed, sir, that the protest imposes silence on the House of 
Representatives as well as on the Senate. It declares that no power is confer- 
red on either branch of the Legislature, to consider or decide upon official 
acts of the Executive, for the purpose of censure, and without a view to le- 
gislation or impeachment. This, I think, sir, is pretty high-toned pretension. 
According to this doctrine, neither House can assert its own rights, however 
the Executive might assail them; neither House could point out the danger 
to the people, however fast executive encroachment might be extending itself, 
or whatever danger it might threaten to the public liberties. If the two 
Houses of Congress may not express an opinion of executive conduct by 
resolution, there is the same reason why they should not express it in any 
other form, or by any other mode of proceeding. Indeed, the protest limits 
both Houses, expressly, to the case of impeachment. If the House of Rep- 
resentatives are not about to impeach the President, they have nothing to 
say of his measures or of his conduct; and unless the Senate are engaged in 
trying an impeachment, their mouths, too, are stopped. It is the practice 
of the Executive to send us an annual message, in which he rehearses the 
general proceedings of the Executive for the past year. This message we 
refer to our committees for consideration. But, according to the doctrine 
of the protest, they can express no opinion upon any executive proceeding, 
upon which it gives information. Suppose the President had told us, in his 
last annual message, what he had previously told us in his cabinet paper, that 
the removal of the deposites was his act, done on his responsibility; and that 
the Secretary of the Treasury had exercised no discretion, formed no judg- 
ment, presumed to have no opinion whatever, on the subject. This part of 
the message would have been referred to the Committee on Finance; but what 
could they say? They think it shows a plain violation of the constitution and 
the laws; but the President is not impeached; therefore, they can express no 
censure. They think it a direct invasion of legislative power, but they must 
not say so. They may, indeed, commend, if they can. The grateful business 
of praise is lawful to them; but if, instead of connnendation and applause, they 



11 

find cause for disapprobation, censure, or alarm, tiie protest enjoins upon 
them absolute silence. 

Formerly, sir, it was a practice for the President to meet both Houses, at 
the opening of the session, and deliver a speech, as is still the usage of some 
of the State Legislatures. To this speech there was an answer from each 
House, and those answers expressed, freely, the sentiments of the House 
upon all the merits and faults of the administration. The discussion of the 
topics contained in the speech, and the debate on the answers, usually drew 
out the whole force of parties, and lasted sometimes a week. President 
Washington's conduct, in every year of his administration, was thus freely 
and publicly canvassed. Ho did not complain of it; he did not doubt that 
both Houses had a perfect right to comment, with the utmost latitude, con- 
sistent with decorum, upon all his measures. Answers, or amendments to 
answers, were not unfrequently proposed, very hostile to his own course of 
public policy, if not sometimes bordering on disrespect. And when they did 
express respect and regard, there were votes ready to be recorded against the 
expression of those sentiments. To all this President Washington took no 
exception; for he well knew that these, and similar proceedings, belonged to 
the power of popular bodies. But if the President were now to meet us 
with a speech, and should inform us of measures, adopted by himself in the 
recess, which should appear to us the most plain, palpable, and dangerous 
violations of the constitution, we must, nevertheless, either keep respectful 
silence, or fill our answer merely with courtly phrases of approbation. 

Mr. President, I know not who wrote this protest, but I confess I am 
astonished, truly astonished, as well at the want of knowledge which it dis- ' 
plays of constitutional law, as at the high and dangerous pretensions which it 
puts forth. Neither branch of the Legislature can express censure upon the 
President's conduct! Suppose, sir, that we should see him enlisting troops, 
and raising an army, can we say nothing, and do nothing? Suppose he 
were to declare war against a foreign power, and put the army and the fleet 
in action; are we still to be silent? Suppose we should see him borrowing 
money ontlie credit of the United States;'''' are we yet to wait for impeachment? 
Indeed, sir, in regard to this borrowing money on the credit of the United 
States, I wish to call the attention of the Senate not only to what might hap- 
pen, but to what has actually happened. We are informed that the Post 
Office Department, a Department over which the President claims the same 
control as over the rest, has actualhj borrowed near half a million of money 
on the credit of the United States. 

Mr. President, the. first power granted to Congress by the constitution is 
the power to lay taxes; the second, the powgr to liorrow money on the credit 
of the United States. Now, sir, where does the Executive find its authority, 
in or through any Department, to borrow money without authority of Congress? 
This proceeding appears to me wholly illegal, and reprehensible in a very 
high degree. It may be said that it is not true that this money is borrowed 
on the credit of the United States, but that it is borrowed on the credit of 
the Post Office Department. But that would be mere evasion. The De- 
partment is but a name. It is an office, and nothing more. The banks have 
not lent this money to any officer. If Congress should abolish the whole 
Department to-morrow, would the banks not expect the United States to 
replace this borrowed money? The money, then, is borrowed on tht; credit 
of the United States; an act which Congress alone is competent to author- 
ize. If the Post Office Department may borrow money, so may the War 



12 

Department, and the ISavy Department. If half a million may be borrowed, 
ten millions may be borrowed. What, then, if this transaction shall be jus- 
tified, is to hinder the Executive from borrowing money, to maintain fleets 
and armies, or for any other purpose, at his pleasure, without any authority 
of law? Yet, even this, according to the doctrine of the protest, we have no 
right to complain of. We have no right to declare that an executive de- 
partment has violated the constitution and broken the law, by borrowing 
money on the credit of the United States. Nor could we make a similar 
declaration, if we were to see the Executive, by means of this borrowed 
money, enlisting armies and equipping fleets. And yet, sir, the President 
has found no difficulty, heretofore, in expressing his opinions, in a paper, not 
called for bi/ the exercise of any official duty, upon the conduct and proceed- 
ings of the two Houses of Congress. At the commencement of this session 
he sent us a message, commenting on the land bill which the two Houses 
passed at the end of the last session. That bill he had not approved, nor 
had he returned it with objections. Congress was dissolved; and the bill, 
therefore, was completely dead, and could not be revived. No communi- 
cation from him could have the least possible eflect as an official act. Yet 
he saw fit to send a message on the subject, and in that message he very 
freely declares his opinion that the bill which had passed both Houses began 
with an entire subversion of every one of the compacts by which the United 
States became jyossessed of their icestcrn domain; that one of its provisions 
icas in direct and undisguised violation of the pledge given by Congress to 
ihe States; that the constitution provides that these compacts shall be un- 
touched by the legislative power, which can only make needful rules and 
regulations; and that all beyond that is an assumption of undelegated power. 

These are the terms in which the President speaks of an act of the two 
Houses; in no official paper, in no communication which it was necessary 
for him to make to them; but in a message, adopted only as a mode through 
which to make public these opinions. After this, it would seem too late to 
enjoin on the Houses of Congress a total forbearance from all comment on 
the measures of the Executive. 

Not only is it the right of both Houses, or of either, to resist, by vote, 
declaration, or resolution, whatever it may deem an encroachment of exe- 
cutive power, but it is also undoubtedly the right of either House to oppose, 
in like manner, any encroachment by the other. The two Houses have each 
its own appropriate powers and authorities, which it is bound to preserve. 
They have, too, different constituents. The members of the Senate are 
representatives of States; and it is in the Senate alone that the four and 
twenty States, as political bodies, have a direct influence in the legislative 
and executive powers of this Government. He is a strange advocate of State 
rights, who maintains that this body, thus representing the States, and thus 
being the strictly federal branch of the Legislature, may not assert and main- 
tain all and singular its own powers and privileges, against either or both of 
the other branches. 

If any thing be done or threatened derogatory to the rights of the States, 
as secured by the organization of the Senate, may we not lift up our voices 
against id Suppose the House of Representatives should vote that the Se- 
nate ought not to propose amendments to revenue bills; would it be the duty 
of the Senate to take no notice of such proceeding? Or, if we were to see 
the President issuing commissions to office to persons who had never hcmx 
nominated to the Senate, are we not to remonstrate? 



13 

Sir, there is no end of cases, no end of illustrations. The doctrines of the 
protest, in this respect, cannot stand the slightest scrutiny; they are blown 
away by the first breath of discussion. 

And yet, sir, it is easy to perceive why this right of declaring its senti- 
ments, respecting the conduct of the Executive, is denied to either House, in 
its legislative capacity. ' It is merely that the Senate might be presented in 
the odious light oi trying the President, judicially, without regular accusation 
or hearing. The protest declares that the President is charged with a crime, 
and, without hearing or trial, found gtdlty and condemned. This is evi- 
dently an attempt to appeal to popular feeling, and to represent the President 
as unjustly treated and unfairly tried. Sir, it is a false appeal. The Pre- 
sident has not been tried at all; he has not been accused; he has not been 
charged with crime; he has not been condemned. Accusation, trial, and 
sentence are terms belonging to judicial proceedings. But the Senate has 
been engaged in no such proceeding. The resolution of the 28th of March 
was not an exercise of judicial power, either in form, in substance, or in 
intent. Every body knows that the Senate can exercise no judicial power 
until articles of impeachment are brought before it. It is then to proceed, 
by accusation and answer, hearing, trial, and judgment. But there has been 
no impeachment, no answer, no hearing, no judgment. All that the Senate 
did was to pass a resolution, in legislative form, declaring its opinion of cer- 
tain acts of the Executive. This resolution imputed no crime; it charged no 
corrupt motive; it proposed no punishment. It was directed, not against the 
President, personally, but against the act; and that act it declared to be, in 
its judgment, an assumption of authority, not warranted by the constitution. 

it is in vain that the protest attempts to shift the resolution on to the judi- 
cial character of the Senate. The case is too plain for such an argument to 
be plausible. But in order to lay some foundation for it, the protest, as I 
have already said, contends that neither the Senate, nor the House of Repre- 
sentatives, can express its opinions on the conduct of the President, except 
in some form connected with impeachment; so that if the power of impeach- 
ment did not exist, these two Houses, though they be representative bodies, 
though one of them be filled by the immediate representatives of the people, 
though they be constituted like other popular and representative bodies, could 
not utter a syllable, although they saw the Executive either trampling on their 
own rights and privileges, or grasping at absolute authority and dominion 
over the liberties of the country! Sir, I hardly know how to speak of such 
claims of impunity for executive encroachment. I am amazed that any 
American citizen should draw up a paper containing such lofty pretensions; 
pretensions, which would have been met with scorn, in England, at any time 
since the Revolution of 1688. A man who should stand up, in either House ot 
the British Parliament, to maintain that the House could not, by vote or resolu- 
tion, maintain its own rights and privileges, would make even the tory 
benches hang their heads for very shame. There was, indeed, a time when 
such proceedings were not allowed. Some of the kings of the Stuart race 
would not toleratfe them. A signal instance of ro3'al displeasure with the 
proceedings of Parliament occurred in the latter part of the reign of James 
the First. The House of Commons had spoken, on some occasion, " of its 
0W71 undoubted rights and privileges.'''' The King thereupon sent them a 
letter, declaring that he would not allow that they had any undoubted 
rights; bid that what they enjoyed they might still hold by his otvn royal 
grace and permission. Sir Edward Coke and Mr. Granville were not sa- 



14 

tisfied witli tliis title to tlifir privileges; aiid, under their lead, the House en- 
tered on its journals h resolution, asserting its privileges, as its own un- 
doubted right, and manifesting a detertninalion to maintain them as such. 
This, says the hisloriaii, so enraged His Majesty, that he sent lor the journal, 
had it brought into the council, and there, in the pi-esence of" his lords and 
great officers of state, tore out the oHensive resolution with his own royal 
hand. He then dissolved Parliament, and sent itx most refractory members to 
tiie Tower. 1 have no fear, certainly, sir, that this English example will be 
followed, on this occasion, to its full extent; nor would I uisinuate that any 
thing outrageous has been thought of, or intended, except outrageous preten- 
sions; but such pretensions 1 must impute to the author of this protest, who- 
ever that author be. 

When this and the other House shall lose the freedom of speech and de- 
bate; when they shall surrender the rights of jjublicly and freely canvassing 
all important measures of the Executive; when they shall not be allowed to 
maintain their own authority and their own pririlegcs by vote, declaration, 
or resolution, they will then be no longer free representatives of a free peo- 
ple, but slaves themselves, and fit instruments to make slaves of others. 

The protest, Mr. President, concedes what it doubtless regards as a liberal 
right of discussion to the people themselves. But its language, even in ac- 
knowledging this right of the i)Coplc to discuss the conduct of their servants, 
is qualified and peculiar. The free people of the United States, it declares, 
have an undoubted right to discuss the official conduct of the President, in 
such language and form as they may think proper, " subject only to the 
restraints of truth and justice. But then who is to be judge of this truth 
and justice'? Are the j)eople to judge for themselves, or are others to judge 
for them? The protest is hero speaking of political rights, and not moral 
rights; and if restraints are imposed on political v'lghts, it must follow, of course, 
that others are to decide, whenever the case arises, whether these restraints 
have been violated. It is strange that the writer of the protest did not per- 
ceive that, by using this language, he was pushing the President into a direct 
avowal of the doctrines of 1798. The text of the protest and the text of 
the obnoxious act of that year are nearly identical. 

But, sir, if the people have a right to discuss the official conduct of tho 
Executive, so have their representatives. We have been taught to regard 
a re[)resentative of the people as a sentinel on the watch-tower of liberty. 
Is he to be blind, though visible danger approaches? Is he to be deaf, though 
sounds of peril fdl the air? Is he to be dumb, while a thousand duties impel 
tiim to raise the cry of alarm? Is he not, rather, to catch" the lowest whisper 
which breathes intention or purpose of encroachment on the public liberties, 
and to give his voice breath and utterance at the first appearance of danger? 
Is not his eye to traverse the whole horizon, with the keen and eager vision 
of an unhooded hawk, detecting, through all disguises, every enemy advanc- 
insr, in any form, towards the citadel which he guards? Sir, this watchfulness 
for public liberty, this duty of foreseeing danger and proclaiming it, this promp- 
titude and boldness in resisting attacks on the constitution from any quarter, 
this defence of established landmarks, this fearless resistance of whatever 
would transcend or remove them, all belong to the representative character, 
are interwoven with its very nature, and of which it camiot be deprived, with- 
out converting an active, intelligent, faithful agent of the people into an 
unresisting and passive instrument of power. A representative body which 
gives up these rights and duties, gives itself up. It is a representative body 



15 

no longer. Il lias broken the tie betncen itsell' and its constituents, ami 
liencelortli is lit only to be regarded as an inert, self-sacriliced mass, iVoni 
wliicli all appropriate principle of vitality has departed forever. 

1 have thus endeavored to vindicate the right ol" the Senate to pass the 
resolution of the 28th of March, notwithstanding the denial of that right in the 
protest. 

But there are other sentiments and opinions expressed in the protest, of 
the very highest importance, and which demand nothing less than our utmost 
attention. 

The first object of a fr«c people is the preservation of their liberty; 
and liberty is only to be preserved by maintaining constitutional restraints 
and just divisions of political power. Nothing is more deceptive or more 
dangerous than the pretence of a desire to simplify government. The 
simplest Governments are despotisms; the next simplest, limited monarchies; 
but all republics, all Governments of law, must impose numerous limitations 
and qualifications of authority, and give many positive and many qualified 
rights. In other words, ilmy must be subject to rule and regulation. This is 
the very essence of free political institutions. The spirit of liberty is, indeed, 
a bold and fearless spirit; but it is also a sharp-sighted spirit; it is a caution:?, 
sagacious, discriminating, far-seeing intelligence; it is jealous of encroach- 
ment, jealous of power, jealous of man. It demands checks, it seeks 
lor guards, it insists on securities; it entrenches itself behind strong de- 
fences, and fortifies, with all possible care, against the assaults of ambition and 
passion. It does not trust the amiable weaknesses of human nature, and 
therefore it will not permit power to overstep its prescribed limits, though 
benevolence, good intent, and patriotic purpose come along with it. Neither 
does it satisfy itself with flashy and temporary resistance to illegal authority. 
Far otherwise. It seeks for duration and permanence. It looks before and 
after; and, building on the experience of ages which are past, it labors 
diligently for the benefit of ages to come. This is the nature of 
constitutional liberty; and this is our liberty, if wc will rightly understand 
and preserve it. Every free Government is necessarily complicated, because 
all such Governments establish restraints, as well on the power of Government 
itself, as on that of individuals. If we will abolish the distinction of branches, 
and have but one branch; if wc will abolish jury trials, and leave all to the 
judge; if we will then ordain that the legislator shall himself be that judge; 
and if we will place the executive power in the same hands, we inay readily 
simplify government. We may easily bring it to the simplest of all possible 
forms, a pure despotism. But a separation of departments, so far as practi- 
cable, and the preservation of clear lines of division between them, is the 
fundamental idea in the creation of all our constitutions; and, doubtless 
the continuance of regulated liberty depends on maintaining these boundaries. 

In the progress, sir, of the Government of the United States, we seem 
rsposcd to two classes of dangers or disturbances; one external, the other 
internal. It may happen that collisions arise between this Government ami 
the Governments of the States. That case belongs to the first class. A 
memorable instance of this kind existed last year. It was my consciimtious 
opinion, on that occasion, that the authority claimed by an individual State 
was subversive of the just powers of this Government, and, indeed, incom- 
patible with its existence. I gave a hearty co-operation, therefore, to mea- 
sures which the crisis seemed to require. We have now before us what 
appears, to wy judgment, to be an instance of the latter kind. A contest has 
arisen between difierent branches of the same Government, interruptinrf their 



16 

harmony, and threatening to disturb their balance. It is of the highest im- 
portance, therefore, to examine the question carefully, and to decide it justly. 

The separation of the powers of Government into three departments, 
though all our constitutions profess to be founded on it, has, nevertheless, 
never been perfectly established in any Government of the world, and, per- 
haps, never can be. The general principle is of inestimable value, and the 
leading lines of distinction sufficiently plain; yet there are powers of so un- 
decided a character, that they do not seem necessarily to range themselves 
under either head. And most of our constitutions, too, having laid down the 
general principle, immediately create exceptions. There do not exist in the 
general science of government, or the received maxims of political law, such 
precise definitions as enable us always to say of a given power whether it 
be legislative, executive, or judicial. And this is one reason, doubtless, why 
the constitution, in conferring power on all the departments, proceeds not by 
general definition, but by specific enumeration. And again, it grants a 
power in general terms, but yet, in the same, or some other article or section, 
imposes a limitation or qualification on the grant; and the grant and the 
limitation must, of course, be construed together. Thus the constitution snyc 
that all legislative power, therein granted, shall be vested in Congress, which 
Congress shall consist of a Senate and House of Representatives; and yet, 
in another article, it gives to the President a qualified negative over all acts 
of Congress. So the constitution declares that the judicial power shall be 
vested in one Supreme Court, and such inferior courts as Congress may es- 
tablish. It gives, nevertheless, in another provision, judicial power to the 
Senate; and, in like manner, though it declares that the executive power 
shall be vested in the President, using, in the immediate context, no words of 
limitation, yet it elsewhere subjects the treaty-making power, and the ap- 
pointing power, to the concurrence of the Senate. The irresistible inference, 
from these considerations, is, that the mere nomination of a department, as 
one of the three great and commonly acknowledged departments of Govern- 
ment, does not confer on that department any power at all. Notwithstanding 
the departments are called the legislative, the executive, and the judicial, 
we must yet look into the provisions of the constitution itself, in order to 
learn, first, what powers the constitution regards as legislative, executive, 
and judicial; and, in tiie next place, what portions or quantities of these 
powers are conferred on the respective departments; because no one will con- 
tend that all legislative power belongs to Congress, all executive power to 
the President, or a/Z judicial power to the courts of the United States. 

The three first articles of the constitution, as all know, are employed in 
prescribing the organization, and enumerating the powers, of the three de- 
partments. The first article treats pf the Legislature, and its first section is: 
" All legislative power, herein granted, shall be vested in a Congress of the 
United States, which shall consist of a Senate and House of Representatives." 

The second article treats of the executive power, and its first section de- 
clares that "the executive power shall be vested in a President of the United 
States of America." 

The third article treats of the judicial power, and its first section declares 
that " the judicial power of the United States shall be vested in one Supreme 
Court, and in such inferior courts as the Congress may, from time to time, 
ordain and establish." 

It is too plain to be doubted, I think, sir, that these descriptions of the 
persons or officers, in whom the executive and the judicial powers are to be 



17 

vested, no more define the extent of the grant of those powers, than the 
words quoted from the first article describe the extent of the legislative 
grant to Congress. All these several titles, heads of articles, or introductory 
clauses, with the general declarations which they contain, serve to designate 
£he departments, and to mark the general distribution of powers; but in all 
the departments, in the executive and judicial as well as in the legislative, 
it would be unsafe to contend for any specific power under such clauses. 

If we look into the State constitutions, we shall find the line of distinction 
between the departments still less perfectly drawn, although the general prin- 
ciple of the distinction is laid down in most of them, and, in some of them, 
in very positive and emphatic terms. In some of these States, notwithstand- 
ing the principle of distribution is adopted and sanctioned, the Legislature 
appoints the judges; and in others it appoints both the Governor and the 
judges; and in others again, it appoints not only the judges, but all other officers. 

The inferences which, I think, follow from these views of the subject are 
two: First, that the denomination of a department does not fix the limits of 
the powers conferred on it, nor even their exact nature; and, second, (which, 
indeed, follows from the first,) that, in our American Governments, the chief 
Executive Magistrate does not necessarily, and by force of his general char- 
acter of Supreme Executive, possess the appointing power. He may have 
it, or he may not, according to the particular provisions applicable to each 
case, in the respective consthutions. 

The President appears to have taken a different view of this subject. He 
seems to regard the appointing power as originally and inherently in the Execu- 
tive, and as remaining absolute in his hands, except so far as the constitution 
restrains it. This I do not agree to, and shall have occasion hereafter to examine 
the question further. I have intended, thus far, only to insist on the high and 
indispensable duty of maintaining the division of power, as the constitution 
has marked that division out; and to oppose claims of authority not founded on 
express grants or necessary implication, but sustained merely by argument, 
or inference, from names or denominations given to departments. ^^^^ 

Mr. President, the resolutions now before us declare, that the protest asserts^ 
powers as belonging to the President, inconsistent with the authority of the two | 
Houses of Congress, and inconsistent with the constitution; and that th« pro- ] 
test itself is a breach of privilege. I believe all this to be true. >-^ 

The doctrines of the protest are inconsistent with the authority of the 
two Houses, because, in my judgment, they deny the just extent of the 
law-making power. I take the protest as it was sent to us, without in- 
quiring how far the subsequent message has rriodified or explained it. It 
is singular, indeed, that a paper, so long in preparation, so elaborate in com- 
position, and which is put forth for so high a purpose as the protest avows, 
should not be able to stand an hour's discussion before it became evident 
that it was indispensably necessary to aher or explain its contents. Explain- 
ed, or unexplained, however, the paper contains sentiments which justify us, 
as I think, in adopting these resolutions. 

In the first place, I think the protest a clear breach of privilege. It is a 
reproof, or rebuke, of the Senate, in language hardly respectful, for the ex- 
ercise of a power clearly belonging to it as a legislative body. It entirely 
misrepresents the proceedings of the Senate. I find this paragraph in it, 
among others of a similar tone and character: " A majority of the Senate, 
*' whose interference with the preliminary question has, for the best of all 
*' reasons, been studiously excluded, anticipate the action of the House of 
2 



18 

•' Representatives, assume not only the function which belongs exclusively 
" to that body, but convert themselves into accusers, witnesses, counsel, and 
" judges, and prejudge the whole case. Thus presenting the appalling spec- 
" tacle, in a free State, of judges going through a labored preparation for an 
" impartial hearing and decision, by a previous ez parte investigation and 
" sentence against the supposed offender." 

Now, sir, this paragraph, I am bound to say, is a total misrepresentation 
of the proceedings of the Senate. A majority of the Senate have not anti- 
cipated the House of Representatives; they have not assumed the functions 
of that body; they have not converted themselves into accusers, witnesses, 
counsel, or judges. They have made no ex parte investigation; they have 
given no sentence. This paragraph is an elaborate perversion of the whole 
design and the whole proceedings of the Senate. A protest, sent to us by 
the President, against votes which the Senate has an Mnquestionable right to 
pass, and containing, too, such a misrepresentation of these votes as this para- 
graph manifests, is a breach of privilege. 

But there is another breach of privilege. The President interferes between 
the members of the Senate and their constituents, and charges them with acting 
contrary to the will of those constituents. He says it is his right and duty to look 
to the journals of the Senate, to ascertain who voted for the resolution of the 
28th of March, and then to show that individual Senators have, by their 
votes on that resolution, disobeyed the instructions, or violated the known will 
of the Legislatures who appointed them. All this he claims, as his right 
and his duty. And where does he find any such right, or any such duty? 
What right has he to send a message to either House of Congress, telling its 
members that they disobey the will of their constituents'? Has any English 
sovereign, since Cromwell's time, dared to send such a message to Parlia- 
ment? Sir, if he can tell us that some of us disobey our constituents, he can 
tell us that all do so; and if we consent to receive this language from him, there 
is but one remaining step; and that is, that since we thus disobey the will of 
our constituents, he should disperse us, and send us home. In my opinion, 
the first step in this process is as distinct a breach of privilege as the last. If 
Cromwell's examples shall be followed out, it will not be more clear then 
than it is now, that the privileges of the Senate have been violated. There 
is yet something, sir, which surpasses all this; and that is, that after this 
direct interference, after pointing out those Senators whom he would re- 
present as having disobeyed the known will of their constituents, he disclaims 
all design nf interfering at all! Sir, who could be the writer of a message, 
which, in the first place, makes the President assert such monstrous preten- 
sions, and, in the next line, aflTront the understanding of the Senate by dis- 
avowing all right to do that very thing which he is doing? If there be any 
thing, sir, in this message, more likely than the rest of it to move one from 
his equaniniity, it is this disclaimer of all design to interfere with the respon- 
sibility of members of the Senate to their constituents, after such interference 
had already been made, in the same paper, in the most objectionable and 
offensive form. If it were not for the purpose of telling these Senators that 
they disobeyed the will of the Legislatures of the States they represent, /or 
ivhat purpose was it that the protest has pointed out the four Senators, and 
paraded against them the sentiments of their Legislatures? There can be noi 
other purpose. The protest says, indeed, that " these facts belong to the 
history of these proceedings !" To the history of what proceedings? To 
any proceeding to which the President was party? To any proceeding to 



19 

which the Senate was party? Have they any thing to do with the resolution 
of the 28th of March? But it adds, that these facts are important to the just 
development of the principles and interests involved in the proceedings. All 
this might be said of any other facts. It is mere words. To what principles, 
to what interests, are these facts important? They cannot be important but 
in one point of view; and that is, as proof, or evidence, that the Senators have 
disobeyed instructions, or acted against the known will of their constituents, 
in disapproving the President's conduct. They have not the slightest bearing 
in any other way. They do not make the resolution of the Senate more or 
less true, nor its right to pass it more or less clear. Sir, these proceedings of 
the Legislatures were introduced into this protest for the very purpose, and 
no other, of showing that members of the Senate have acted contrary to the 
will of their constituents. Every man sees and knows this to have been the 
sole design; and any other pretence is a mockery to our understandings. And 
this purpose is, in my opinion, an unlawful purpose; it is an unjustifiable in- 
tervention between us and our constituents; and is, therefore, a manifest and 
flagrant breach of privilege. 

In the next place, the assertions of the protest are inconsistent with the 
just authority of Congress, because they claim for the President a power, 
independent of Congress, to possess the custody and control of the public 
treasures. Let this point be accurately examined; and, in order to avoid 
mistake, I will read the precise words of the protest: 

" The custody of the public property, under such regulations as may be 
*' prescribed by legislative authority, has always been considered an appro- 
" priate function of the executive department in this and all other Govern- 
*" ments. In accordance with this principle, every species of property 
*' belonging to the United States, (excepting that which is in the use of the 
*' several co-ordinate departments of the Government, as means to aid them 
*' in performing their appropriate functions,) is in charge of officers appoint- 
*' ed by the President, whether it be lands, or buildings, or merchandise, or 
*' provisions, or clothing, or arms and munitions of war. The superintend- 
"ents and keepers of the whole are appointed by the President, and re- 
*' movable at his will. 

" Public money is but a species of public property. It cannot be raised 
" by taxation or customs, nor brought into the treasury in any other way 
*' except by law; but whenever or howsoever obtained, its custody always 
" has been, and always must be, unless the constitution be changed, intrusted 
** to the executive department. No officer can be created by Congress, for 
*'the purpose of taking charge of it, whose appointment would not, by the 
*' constitution, at once devolve on the President, and who would not be re- 
*' sponsible to him for the faithful performance of his duties." 

And, in another place, it declares that " Congress cannot, therefore, take 
out of the hands of the executive department the custody of the public 
property or money, without an assumption of executive power, and a sub- 
version of the first principles of the constitution." These, sir, are proposi- 
tions which cannot receive too much attention. They affirm, that the 
custody of the public money constitutionally and necessarily belongs to the 
Executive; and that, until the constitution is changed, Congress cannot take 
it out of his hands, nor make any provision for its custody, except by such 
superintendents and keepers as are appointed by the President, and remov- 
able at his will. If these assertions be correct, we have, indeed, a singular 
cofflstitution for a republican Government; for we give the Executive the 



20 

control, the custody, and the possession of the public treasury, by original 
constitutional provision; and when Congress appropriates, it appropriates 
only what is already in the President's hands. 

Sir, I hold these propositions to be sound in neither branch. I maintain 
that the custody of the public money does not, necessarily, belong to the 
Executive, under this Government; and I hold, that Congress may so dis- 
pose of it, that it shall be under the superintendence of keepers not appoint- 
ed by the President, nor removable at his will. I think it competent for 
Congress to declare, as Congress did declare in the Bank charter, that the 
public deposites should be made in the Bank. When in the Bank, they 
were not kept by persons appointed by the President, or removable at his 
will. He could not change that custody, nor could it be changed at all, but 
according to provisions made in the law itself. There was, indeed, a pro- 
vision in the law authorizing the Secretary to change the custody. But, 
suppose there had been no such provision; suppose the contingent power 
had not been given to the Secretary, would it not have been a lawful enact- 
ment? Might not the law have provided that the public moneys should re- 
main in the Bank, until Congress itself should otherwise order, leaving 
no power of removal any where else? And if such provision had been made, 
what power, or custody, or control, would the President have possessed over 
them? Clearly, none at all. The act of May, 1800, directed custom-house 
bonds, in places where the Bank, which was then in existence, was situated, 
or in which it had branches, to be deposited in the Bank or its branches for 
collection, without the reservation of any power of removal to the Secretary 
or any body else. Now, sir, this was an unconstitutional law, if the protest, 
in the part now under consideration, be correct; because it placed the public 
money in a custody beyond the control of the President, and in hands of 
keepers not appointed by him, nor removable at his pleasure. One may 
readily discern, sir, the process of reasoning by which the author of the 
protest brought himself to the conclusion that Congress could not place the 
public moneys beyond the President's control. It is all founded on the power 
of appointment, and the power of removal. These powers, it is supposed, 
must give the President complete control and authority over those who ac- 
tually hold the money, and, therefore, must necessarily subject its custody, at 
all times, to his own individual will. This is the argument. 

It is true, that the appointment of all public officers, with some exceptions, 
is, by the constitution, given to the President, with the consent of the Senate; 
and as, in most cases, public property must be held by some officer, its keepers 
will generally be persons so appointed. But this is only the common, not a 
necessary consequence, of giving the appointing power to the President and 
Senate. Congress may still, if it shall so see fit, place the public treasure in the 
hand of no officer appointed by the President, or removable by him, but in 
hands quite beyond his control. Subject to one contingency only, it did this 
very thing by the charter of the present Bank; and it did the same thing 
absolutely, and subject to no contingency, by the law of 1800. The pro- 
test, in the first place, seizes on the fact that all officers must be appointed 
by the President, or on his nomination; it then assumes the next step, that 
all officers are, and must he, removable at his pleasure; and then, insisting that 
public money, like other public property, must be kept by some public officer^ 
it thus arrives at the conclusion that it must always be in the hands of those 
who are appointed by the President, and who are removable at his pleasure. 
And it is very clear that the protest means to maintain that the tenure of office 



21 

cannot be so regulated by law, as that public officers shall not be removabk 
at the pleasure of the President. 

The President considers tlie right of removal as a fixed, vested con- 
stitutional right, which Congress cannot limit, control, or qualify, until the 
constitution shall be altered. This, sir, is doctrine which I am not prepared 
to admit. I shall not now discuss the question^ whether the law may not 
place the tenure of office beyond the reach of executive pleasure; but I 
wish merely to draw the attention of the Senate to the fact, that any such 
power in Congress is denied by the principles and by the words of the pro- 
test. According to that paper, we live under a constitution, by the provisions 
of which the public treasures are, necessarily and unavoidably, always under 
executive control; and as the Executive may remove all officers, and appoint 
others, at least temporarily, without the concurrence of the Senate, he may 
hold those treasures, in the hands of persons appointed by himself alone, in 
■defiance of any law which Congress has passed or can pass. It is to be seen, 
sir, how far such claims of power will receive the approbation of the country. 
It is to be seen whether a construction will be readily adopted which thus 
places the public purse out of the guardianship of the immediate represen- 
tatives of the people. 

But, sir, there is, in this paper, something even yet more strange than these 
extraordinary claims of power. There is, sir, a strong disposition, running 
through the whole protest, to represent the executive department of this 
Government as the peculiar protector of the public liberty, the chief secu- 
rity on which the people are to rely against the encroachment of other 
branches of the Government, Nothing can be more manifest than this pur- 
pose. To this end, the protest spreads out the President's official oath, 
reciting all its words in a formal quotation; and yet the oath of members of 
Congress is exactly equivalent. The President is to swear that he will " pre- 
serve, protect, and defend the constitution;^' and members of Congress are 
to swear that they will "support the constitution," There are more words 
^n one oath than the other, but the sense is precisely the same. Why, then, 
this reference to his official oath, and this ostentatious quotation of iti Would 
the writei- of the protest argue that the oath itself is any grant of power; or 
that, because the President is to "preserve, protect, and defend the consti- 
tution," he is, therefore, to use what means he pleases, or any means for 
such preservation, protection, and defence, except those which the constitu- 
tion and laws have specifically given hlml Such an argument would be pre- 
posterous; but if the oath be not cited for this preposterous purpose, with 
what design is it thus displayed on the face of the protest, unless it be to sup- 
port the general idea that the maintenance of the constitution and the pre- 
servation of the public liberties are especially confided to the safe discretion, 
the sure moderation, the paternal guardianship of executive power? The 
oath of the President contains three words, all of equal import; that is, that 
he will preserve, protect, and defend the constitution. The oath of members 
'of Congress is expressed in shorter phrase; it is, that they will support the 
constitution. If there be any diflerence in the meaning of the two oaths, I 
cannot discern it; and yet the protest solemnly and formally argues thus: " The 
duty of defending, so far as in him lies, the integrity of the constitution, would, 
indeed, have resulted from the very nature of his office; but, by thus express- 
ing it in the official oath or affirmation, which, in this respect, differs from 
that of every other functionary, the founders of our republic have attested their 
sense of its importaRoe, and have given to it a peculiar solemnity and force." 



22 

Sir, I deny the proposition, and I dispute the proof, I deny that tiie duty 
of defending the integrity of the constitution is, in any peculiar sense, confided 
to the President; and I deny that the words of his oath furnish any argument 
to nmake good that proposition. Be pleased, sir, to remember against whom 
it is that the President holds it his peculiar duty to defend the integrity of 
the constitution. It is not against external force; it is not against a foreign 
foe; no such thing; but it is against the representatives of the people and 
the representatives of the States. It is against these, that the founders of 
our republic have imposed on him the duty of defending the integrity of the 
constitution; a duty, he says, of the importance of which they have attested 
their sense, and to which they have given peculiar solemnity and force, by 
expressing it in his official oath! 

Let us pause, sir, and consider this most strange proposition. The Presi- 
dent is the chief Executive Magistrate. He is commander-in-chief of the 
army and navy, nominates all persons to office, claims a right to remove all 
at will, and to control all, while yet in office, dispenses all favors, and wields 
the whole patronage of the Government. And the proposition is, that the 
duty of defending the integrity of the constitution against the representatives 
of the States, and against the representatives of the people, results to him 
from the very nature of his office; and that the founders of our republic have 
given to this duty, thus confided to him, peculiar solemnity and force! 

Mr. President, the contest, for ages, has been to rescue liberty from the 
grasp of executive power. Whoever has engaged in her sacred cause, from 
the days of the downfall of those great aristocracies, which had stood be- 
tween the King and the people, to the time of our own independence, has 
struggled for the accomplishment of that single object. On the long list of the 
champions of human freedom there is not one name dimmed by the reproach of 
advocating the extension of executive authority; on the contrary, the uniforn> 
and steady purpose of all such champions has been to limit and restrain it. To 
this end the spirit of liberty, growing more and more enlightened, and more and 
more vigorous from age to age, has been battering, for centuries, against the 
solid hutments of the feudal system. To this end, all that could be gained from 
the imprudence, snatched from the weakness, or wrung from the necessities 
of crowned heads, has been carefully gathered up, secured, and hoarded as 
the'rich treasures, the very jewels of li>berty. To this end, popular and re- 
presentative right has kept up its warfare against prerogative, with various 
success; sometimes writing the history of a whole age in blood, sometimes wit- 
nessing the martyrdom of Sidneys and Russells, often baffled and repulsed, 
but still gaining, on the whole, and holding what it gained with a grasp which 
nothing but the complete extinction of its own being could compel it to 
relinquish. At length, the great conquest over executive power in the lead- 
ing western states of Europe has been accomplished. The feudal system, 
like other stupendous fabrics of past ages, is known only by the rubbish which 
it has left behind it. Crowned heads have been compelled to submit to the 
restraints of law; and the people, with that intelligence and that spirit which 
make their voice resistless, have been able to say to prerogative, " Thus far 
shalt thou come, and no farther." I need hardly say, sir, that into the full en- 
joyment of all which Europe has reached only through such slow and painful 
steps, we sprang at once, by the declaration of independence, and by the es- 
tablishment of free representative Governments; Governments, borrowing 
more or less from the models of other free States, but strengthened, secured. 



23 

improved in their symmetry, and deepened in tlieir foundation, by those great 
men of our own country whose names will be as familiar to future times as 
if they were written on the arch of the sky. 

Through all this history of the contest for liberty, executive power has been 
regarded as a lion which must be caged. So far from being the object of en- 
lightened popular trast, so far from being considered the natural protector of 
popular right, it has been dreaded, uniformly, always dreaded, as the great 
source of its danger. 

And now, sir, who is he, so ignorant of the history of liberty, at home and 
abroad; who is he, yet dwelling, in his contemplations, among the principles 
and dogmas of the middle ages; who is he, from whose bosom all original in- 
fusion of American spirit has become so entirely evaporated and exhaled, as 
that he shall put into the mouth of the President of the United States the doc- 
trine that the defence of liberty naturally results to executive power, and is its 
peculiar duty? Who is he, that, generous and confiding towards power where 
it is most dangerous, and jealous only of those who can restrain it; who is he, 
that, reversing the order of the state, and up-heaving the base, would poise the 
pyramid of the political system upon its apex; who is he, that, overlooking 
with contempt the guardianship of the representatives of the people, and, 
with equal contempt, the higher guardianship of the people themselves; who 
is he, that declares to us, through the President's lips, that the security for 
freedom rests in executive authority? Who is he that belies the blood and 
libels the fame of his own ancestors, by declaring that they, with solemnity 
of form, and force of manner, have invoked the executive power to come to 
the protection of liberty? Who is he that thus charges them with the insanity, 
or the recklessness, of putting the lamb beneath the lion's paw? No, sir. 
No, sir. Our security is in our watchfulness of executive power. It was the 
constitution of this department, which was infinitely the most difficult part in 
the great work of creating our present Government. To give to the execu- 
tive department such power as should make it useful, and yet not such as 
should render it dangerous; to make it efficient, independent, and strong, and 
yet to prevent it from sweeping away every thing by its union of military and 
civil authority, by the influence of patronage, and office, and favor: this, in- 
deed, was difficult. They who had the woik to do saw the difficulty, and 
we see it; and if we would maintain our system, we shall act wisely to that 
end, by preserving every restraint and every guard which the constitution has 
provided. And when we, and those who come after us, have done all that 
we can do, and all that they can do, it will be well for us and for them, if 
some popular Executive, by the power of patronage and party, and the 
power, too, of that very popularity, shall not hereafter prove an over-match 
for all other branches of the Government. 

I do not wish, sir, to impair the power of the President, as it stands writ- 
ten down in the constitution, and as gr^at and good men have hitherto exer- 
cised it. In this, as in other respects, I am for the constitution as it is. But 
I will not acquiesce in the reversal of all just ideas of Government; I will 
not degrade the character of popular representation; I will not blindly con- 
fide, where all experience admonishes me to be jealous; I will not trust ex- 
ecutive power, vested in the hands of a single magistrate, to keep the vigils 
of liberi«y. 

Having claimed for the Executive the especial guardianship of the consti- 
tution, the protest proceeds to present a summary view of the powers which 
are supposed to be conferred on the Executive by that instrument. And it is 



24 

/otbis part of the message, sir, that I would, more than to all others, call tfie 
particular attention of the Senate. I confess, that it was only upon careful re- 
perusal of the paper, that I perceived the extent to which its assertions of pow- 
er reach. I do not speak, now, of the President's claims of power, as op- 
posed to legislative authority, but of his opinions as to his own authority,, 
duty, and responsibility, as connected with all other officers under the Govern- 
ment. He is of opmion that the whole executive power is vested in him^ 
and that he is responsible for its entire exercise; that, among the duties 
imposed on him, is that of " taking care that the laws be faithfully exe- 
cuted;" and that " being thus made responsible for the entire action of the 
'* executive department, it was but reasonable that the power of appointing, 
" overseeing, and controlling those who execute the laws — a power in its na- 
" ture executive — should remain in his hands. It is, therefore, not only his 
" right, but the constitution makes it his duty, to ' nominate, and by and with 
" the advice and consent of the Senate appoint,' all ' officers of the United 
" States whose appointments are not in the constitution otherwise provided 
" for,' with a proviso that the appointment of inferior officers may be vested 
" in the President alone, in the courts of justice, or in the heads of depart- 
" ments." 

The first proposition, then, which the protest asserts, in regard to the Pre- 
sident's powers, as Executive Magistrate, is, that the general duty being im- 
posed on him by the constitution of taking care that the laws be faithfully 
executed, he thereby becomes himself responsible for the conduct of every 
person employed in the Government; " for the entire action," as the paper ex- 
presses it, " of the executive department." This, sir, is very dangerous 
logic. I reject the inference altogether. No such responsibility, nor any 
thing like it, follows from the general provision of the constitution, making it 
his duty to see the laws executed. If it did, we should have, in fact, but one offi- 
cer in the whole Government. The President would be every body. And the 
protest assumes to the President this whole responsibility for every other 
officer, for the very purpose of making the President every body, of annihi- 
lating every thing like independence, responsibility, or character in all other 
public agents. The whole responsibility is assumed, in order that it may be 
more plausibly argued that all officers of Government are, not agents of the 
law, but the President's agents, and therefore responsible to him alone. If he be 
responsible for the conduct of all officers, and they be responsible to him only^ 
then it may be maintained that such officers are but his own agents, his 
substitutes, his deputies. The first thing to be done, therefore, is to assume 
the responsibility for all; and this, you will perceive, sir, is done, in the 
fullest manner, in tire passages which I have read. Having thus assumed 
for the President the entire responsibility of the whole Government, the 
protest advances boldly to its conclusion, and claims, at once, absolute power 
over all individuals in office, as being merely the President's agents. This 
is the language; " The whole executive power being vested in the President., 
" who is responsible for its exercise, it is a necessary consequence that he 
" should have a right to employ agents of his own choice, to aid him in the 
" perforniyance of hrs duties, and to discharge them when he is no longer 
" willing to be responsible for their acts." 

This, sir, completes the work. Tiiis handsomely rounds off the whole 
executive system of executive authority. First, the President has the whole re- 
sponsibility; and then, being thus responsible for all, he has, and ought to have, 
tlie whole power, Wchave heard of political nnits^m\(\ our American Executivey 



25 

as here represented, is, indeed, a unit. We have a charmingly simple Govern- 
ment! Instead of many officers in different departments, each having appro- 
priate duties, and each responsible for his own duties, we are so fortunate as 
to have to deal with but one officer. The President carries on the Govern- 
ment; all the rest are but sub-contractors. Sir, whatever name we give him, 
we have but ONE EXECUTIVE OFFICER. A Briareus sits in the 
centre of our system, and with his hundred hands touches every thing, 
moves every thing, controls every thing. I ask, sir, is this republicanism? is 
this a government of laws? is this legal responsibility? 

According to the protest, the very duties, which every officer under the 
Government performs, are the duties of the President himself. It says that 
the President has a right to employ agents of his oioji choice, to aid him in 
the performance of his duties. 

Mr. President, if these doctrines be true, it is idle for us any longer to talk 
about any such thing as a government of laws. We have no government of 
laws, not even the semblance or shadow of it; we have no legal responsibility. 
We have an Executive, consisting of one person, wielding all official power, 
and which is, to every effectual purpose, completely irresponsible. The Pre- 
sident declares that he is " responsible for the entire action of the executive 
department." Responsible? What does he mean by being '■'■responsihleV Does 
he mean legal responsibiliti/? Certainly not. No such thing. Legal respon- 
sibility signifies liability to punishment for misconduct or mal-administration 
But the protest does not mean that the President is liable to be impeached 
and punished, if a Secretary of State should commit treason, if a Collector of 
the customs should be guilty of bribery, or if a Treasurer should embezzle 
the public money. It does not mean, and cannot mean, that he should be 
answerable for any such crime, or such delinquency. What, then, is its no- 
tion of that responsibility, which it says the President is under for all officers, 
and which authorizes him to consider all officers as his own personal agents? 
Sir, it is merely responsibility to public opinion. It is a liability to be blamed; 
it is the chance of becoming unpopular, the danger of losing a re-electioUj 
Nothing else is meant in the world. It is the hazard of failing in any attempt 
or enterprise of ambition. This is all the responsibility to which the doc- 
trines of the protest hold the President subject. 

It is precisely the responsibility under which Cromwell acted, when he 
dispersed Parliament, telling its members, not in so many words, indeed, that 
they disobeyed the will of their constituents, but telling them that the people 
were sick of them, and that he drove them out " for the glory of God, and 
the good of the nation." It is precisely the responsibility upon which Bona- 
parte broke up the popular assembly of France. I do not mean, sir, certainly, 
by these illustrations, to insinuate designs of violent usurpations ag^ainst the 
President: far from it; but I do mean to maintain that such responsibility as 
that with which the protest clothes him, is no legal responsibility, no consti- 
tutional responsibility, no republican responsibility; but a mere liability to 
loss of office, loss of character, and loss of fame, if he shall choose to violate 
the laws and overturn the liberties of the country. It is such a responsibility 
as leaves every thing in his discretion, and his pleasure. 

Sir, it exceeds human belief, that any man should put sentiments, such as this 
paper contains, into a public communication from the President to the Senate. 
They are sentiments which give us all one master. The protest asserts an abso- 
lute right to remove all persons from office, at pleasure; and for what reason? 
Because they are incompetent? Because they are iiica^pable? Because they 



26 

are remiss, negligent, or inattentive? No, sir, these are not tiie reasons. But 
he may discharge tliem, one and all, simply because " he is no longer willing 
to be responsible for their acts!" It insists on an absolute right in the 
President to direct and control every act of every officer of the Govern- 
ment, except the judges. It asserts this right of direct control, over and over 
again. The President may go into the Treasury, among the auditors and 
controllers, and dnect them how to settle every man's account; what abate- 
ments to make from one, what additions to another. He may go into the 
custom-house, among collectors and appraisers, and may control estimates, 
reductions, and appraisements. It is true, that these officers are sworn to 
discharge the duties of their respective offices honestly and fairly, according 
to their oren best abilities; it is true, that many of them are liable to indict- 
ment for official misconduct, and others responsible, in suits of individuals, for 
damages and penalties, if such official misconduct be proved; but notwith- 
standing all this, the protest avers that all these officers are but the Presi- 
dent's agents, that they are but aiding him in the discharge of his duties, that 
he is responsible for their conduct, and that they are removable at his will 
and pleasure. And it is under this view of his own authority, that the Pre- 
sident calls the secretaries his secretaries, not once only , but repeatedly. After 
half a century's administration of this Government, sir, after we have endea- 
vored, by statute upon statute, and by provision following provision, to define 
and limit official authority, to assign particular duties to particular public ser- 
vants, to define those duties, to create penalties for their violation, to adjust, 
accurately, the responsibility of each agent, with his own powers and his 
own duties, to establish the prevalence of equal rule, to make the law, as 
far as possible, every thing, and individual will, as far as possible, nothing; 
after all this, the astounding assertion rings in our ears, that throughout the 
whole range of official agency, in its smallest ramifications, as well as in its 
larger masses, there is but one responsibility, one discretion, one will! 
True indeed, is it, sir, if these sentiments be maintained, true indeed, is it, 
that a President of the United States may well repeat, from Napoleon, what 
he repeated from Louis the 14th, " I am the State." 

The argument by wliich the writer of the protest endeavors to establish 
the President's claim to this vast mass of accumulated authority, is founded 
on the provision of the constitution, that the executive power shall be vested 
in the President. No doubt the executive power is vested in the President; 
but what, and how much executive power, and how limited? To this ques- 
tion I should answer, " look to the constitution and see; examine the par- 
ticulars of the grant, and learn what that executive power is, which is given 
to the President, either by express words or by necessary implication." But 
so the writer of this protest does not reason. He takes these words of the 
constitution as being, of themselves, a general original grant of all executive 
power to the President, subject only to such express limitations as the con- 
stitution prescribes. This is clearly the writer's view of the subject, unless, 
indeed, he goes behind the constitution altogether, as some expressions would 
intimate, to search, elsewhere, for sources of executive power. Thus the 
protest says, that it is not only the right of the President, but that the'con- 
stitution makes it his djity, to appoint persons to office; as if the right ex- 
isted before the constitution had created the diiti/. It speaks, too, of the 
power of removal, not as a power granted by the constitution, but expressly 
as " an original executive power, left unchecked by the constitution. How 
original? Coming from what source higher than the constitution? I should be 



27 

glad to know how the President gets possession of any power by a title 
earlier, or more original, than the grant of the constitution; or what is 
meant by an original power, which the President possesses, and which 
the constitution has left, unchecked, in his hands. The truth is, sir, most 
assuredly, that the writer of the protest, in these passages, was reasoning 
upon the British constitution, and not upon the constitution of the United 
States. Indeed, he professes to found himself on authority, drawn from the 
constitution of England. I will read, sir, the wliole passage. It is this: 

" In strict accordance with this principle, the power of removal, which, 
" like that of appointment, is an original executive power, is left unchecked 
" by the constitution in relation to all executive officers, for whose conduct the 
" President is responsible; while it is taken from him in relation to judicial 
" officers, for whose acts he is not responsible. In the Government from 
" which many of the fundamental principles of our system are derived, the 
" head of the executive department originally had power to appoint and 
" remove at will all officers, executive and judicial. It was to take the 
"judges out of this general power of removal, and thus make them inde- 
" pendent of the Executive, that the tenure of their offices was changed to 
" good behavior. Nor is it conceivable why they are placed, in our con- 
" stitution, upon a tenure different from that of all other officers appointed 
*' by the Executive, unless it be for the same purpose." 

Mr. President, I do most solemnly protest (if I, too, may be permitted to 
make a protest) against this mode of reasoning. The analogy between the 
British constitution and ours, in this respect, is not close enough to guide us 
safely; it can only mislead us. It has entirely misled tke writer of the pro- 
test. The President is made to argue, upon this subject, as if he had 
some right anterior to the constitution, which right is, by that instrument, 
checked, in some respects, and in other respects is left unchecked; but which, 
nevertheless, still derives its being from another source; just as the British 
King had, in the early ages of the monarchy, an uncontrolled right of ap- 
pointing and removing all officers at pleasure; but which right, so far as it 
respects the judges, has since been checked and controlled by act of Par- 
liament; the right being original and inherent, the check only imposed by 
law. Sir, I distrust altogether British precedents, authorities, and analogies, 
on such questions as this. We are not inquiring how far our constitution 
has imposed checks on a pre-existing authority. We are inquiring what ex- 
tent of power that constitution has granted. The grant of power, the whole 
source of power, as well as the restrictions and limitations which are imposed 
on it, is made in and by the constitution. It has no other origin. And it is 
this, sir, which distinguishes our system so very widely and materially from 
the systems of Europe. Our Governments are limited Governments; limited 
in their origin, in their very creation; limited, because none but specific 
powers were ever granted either to any department of Government, or to 
the whole. Theirs are limited, whenever limited at all, by reason of re- 
straints, imposed at different times, on Governments originally unlimited and 
despotic. Our American questions, therefore, must be discussed, reasoned on, 
decided, and settled, on the appropriate principles of our own constitutions, 
and not by inapplicable precedents, and loose analogies, drawn from foreign 
States. 

Mr. President, in one of the French comedies, as you know, in which the 
dullness and prolixity of legal argument is intended to be severely satirized, 
while the advocate is tediously groping among ancient lore having nothi ng 



28 

to do with his case, the judge grows impatient, and at last eries out to him 
to come down to the flood! I really wish, sir, that the writer of this protest, 
since he was discussing matters of the highest importance to us as Americans, 
and which arise out of our own peculiar constitution, had kept himself, not 
only on this side the general deluge, but also on this side the Atlantic. 1 de- 
sire that all the broad waves of that wide sea should continue to roll between 
us and the influence of those foreign principles and foreign precedents, 
which he so eagerly adopts. 

In asserting power for an American President, I prefer he should attempt 
to maintain his assertions on American reasons. I know not, sir, who the 
writer was, (I wish I did;) but, whoever he was, it is manifest that he argues 
this part of his case, throughout, on the principles of the constitution of Eng- 
land. It is true, that in England the King is regarded as the original foun- 
tain of all honor and all office; and that anciently, indeed, he possessed all 
political power of every kind. It is true that this mass of authority, in the 
history of that Government, has been diminished, restrained, and controlled 
by charters, by immunities, by grants, and by various modifications, which the 
friends of liberty have, at different periods, been able to obtain or to impose. All 
liberty, as we know, all popular privileges, as, indeed, the word itself imports, 
were formerly considered as favors and concessions from the monarch. But 
whenever and wherever civil freedom could get a foothold, and could main- 
tain itself, these favors were turned into rights. Before and during the reigns 
of the princes of tlie Stuart family, they were acknowledged only as favors 
or privileges, graciously allowed, although, even then, whenever opportunity 
offered, as in the instance to which I alluded just now, they were contended 
for as rights; and by the revolution of 1688, they were acknowledged as rights 
in England, by the prince who then ascended the throne, and as the condi- 
tion on which he was allowed to sit upon it. But, with us, there never was a 
time when we acknowledged original, unrestrained, sovereign power over us. 
Our constitutions are not made to limit and restrain pre-existing authority. 
They are the instruments by which the people confer power on their own 
servants. If I may use a legal phrase, the people are grantors, not grantees. 
They give to the Government, and to each branch of it, all the power it pos- 
sesses, or can possess; and what is not given, they retain. In England, be- 
fore her revolution, and in the rest of Europe since, if we would know the 
extent of liberty or popular right, we must go to grants, to charters, to allow- 
ances, and indulgencies. But, with us, we go to grants and to constitutions 
to learn the extent of the powers of Government. No political power is more 
original than the constitution; none is possessed which is not there granted; 
and the grant, and the limitations in the grant, are in the same instrument. 

The powers, therefore, belonging to any branch of our Government, are to 
be construed and settled, not by remote analogies, drawn from oTher Govern- 
ments, but from the words of the grant itself, in their plain sense and neces- 
sary import, and according to an interpretation consistent with our own his- 
tory and the spirit of our own institutions. And I will never agree that a 
President of the United States holds the whole undivided power of office in 
his own hands, upon the theory that he is responsible for the entire action 
of the whole body of those engaged in carrying on the Government and exe- 
"cuting the laws. Such a responsibility is purely ideal, delusive, and vain. 
There is, there can be, no substantial responsibility, any farther than every 
individual is answerable, not merely in his reputation, not merely in the opin- 
ion 0^ mankind, but to the law, for the faithful discharge of his own appro- 



29 



priate duties. Again and again we hear it said that the President is responsi- 
ble to the Amencan people! that he is responsible to the bar of public opinion! 
* or whatever he does, he assumes accountability to the American people' 
tor whatever he omits, he expects to be brought to the high bar of public 
opinion! And this is thought enough for a limited, restrained, republi- 
can Government! An undefined, undefinable, ideal responsibility to the 
public judgment! Sir, if all this mean any thing, if it be not empty sound, it 
means no less than that the President may do any thing and every thing 
which he may expect to be tolerated in doing. He may go just so far as he 
thinks it safe to go; and Cromwell and Bonaparte went no farther. I ask 
again, sir, is this legal responsibility? Is this the true nature of a Government 
with written laws and limited powers] And allow me, sir, to ask, too, if an 
Executive Magistrate, while professing to act under the constitution, is re- 
strained only by this responsibility to public opinion, what prevents him, on 
the same responsibility, from proposing a change in that constitution? Why 
may he not say, " I am about to introduce new forms, new principles and 
with a new spirit; I am about to try a political experiment, on a great scale- 
and vyhen I get through with it, I shall be responsible to the American people' 
1 shall be answerable to the bar of public opinion?" ' 

Connected, sir, with the idea of this airy and unreal responsibility to the 
public, IS another sentiment, which, of late, we hear frequently expressed; and 
that IS, that the President is the direct representative of the American peo- 
ple. This is declared, in the protest, in so many words: " The President," 
says the protest, " is the direct representative of the American people." Now 
sir, this IS not the language of the constitution. The constitution no where 
calls him the representative of the American people, still less their direct re- 
presentative. It could not do so with the least propriety. He is not chosen 
directly by the people, but by a body of electors, some of whom are chosen by 
the people, and some of whom are appointed by the State Legislatures. Where 
then, is the authority for saying that the President is the direct representa- 
twe of the people! The constitution calls the members of the other House 
Representatives, and declares that they shall be chosen by the people; and 
there are no other direct or immediate representatives of the people in this 
Government. The constitution denominates the President simply the Presi- 
dent of the United States; it points out the complex mode of electing him 
defines his powers and duties, and imposes limits and restraints on his authority 
With these powers and duties, and under these restraints, he becomes when 
chosen. President of the United States. That is his character, and the denomi- 
nation of his office. How is it, then, that on this official character, thus cautiously 
created, limited, and defined, he is to engraft another, and a very imposing 
character, viz: the character of the direct representative of the American 
people! I hold this, sir, to be mere assumption, and dangerous assumption If 
he is the representative of all the American people, he is the only represen- 
tative which they all have. Nobody else presumes to represent all the 
people. And if he may be allowed to consider himself as the sole repre- 
sentative OF ALL THE AMERICAN PEOPLE, and is to act Under no other re- 
sponsibility than such as I have already described, then I say, sir, that the 
Government (I will not say the people) has already a master. I deny the sen- 
timent, therefore, and I protest against the language; neither the sentiment nor 
the language is to be found in the constitution of the country; and whosoever 
IS not satisfied to describe the powers of the President in the language of the 
constitution, may b« justly suspected of being as little satisfied with the powers 



30 

themselves. The President is President. His office and his name of office 
are known, and both are fixed and described by law. Being commander of 
the army and navy, holding the power of nominating to office and removing 
from office, and being, by these powers, the fountain of all patronage and 
all favor, what does he not become if he be allowed to superadd to all this, 
the character of single representative of the American people? Sir, he be- 
comes, what America has not been accustomed to see, what this constitution 
has never created, and what I cannot contemplate, but with profound alarm. 
He who may call himself the single representative of a nation, may speak m 
the name of the nation; may undertake to wield the power of the nation; and 
who shall gainsay him, in whatsoever he chooses to pronounce as the nation s 

will? , , . 

I will now, sir, ask leave to recapitulate the general doctrines of this pro- 
test, and to present them together. They are: 

That neither branch of the Legislature can take up, or consider, tor the 
purpose of censure, any official act of the President, without some view to 
legislation or impeachment; 

That not only the passage, but the discussion of the resolution ol the ben- 
ate of the 28th of March, was unauthorized by the constitution, and repug- 
nant to its provisions; j . 

That the custody of the public treasury always must be intrusted to the 
Executive; that Congress cannot take it out of his hands, nor place it any 
where, except with such superintendents and keepers, as are appointed by 
him, responsible to him, and removable at his will; 

That the whole executive power is in the President, and that, theretore, 
the duty of defending the integrity of the constitution results to him from the 
very nature of his office; and that the founders of our republic have attested 
their sense of the importance of this duty, and, by expressing it in his official 
oath, have given to it peculiar solemnity and force; , , . , 

That as he is to take care that the laws be faithfully executed, he is there- 
by made responsible for the entire action of the executive department, with 
power of appointing, overseeing, and controlling those who execute the laws; 

That the power of removal from office, like that of appointment, is an ori- 
sinal executive power, and is left in his hands, unchecked by the constitution, 
except in the case of judges; that, being responsible for the exercise of the 
whole executive power, he has a right to employ agents of his own choice, to 
assist him in the performance of his duties, and to discharge them when he 
is no longer willing to be responsible for their acts; 

That the secretaries are his secretaries, and all persons appointed to offices 
created by law, except the judges, his agents, responsible to him, and remov- 
able at his pleasure; . r.7 * ■ /. 
And, finally, that he is the direct representative of the American people. 
These, sir, are some of the leading propositions, contained in the protest; 
and if they be true, then the Government under which we live is an elective 
monarchy. It is not yet absolute, there are yet some checks and limitations m 
the constitution and laws; but in its essential and prevailing character it is an 

elective monarchy. , r i j * • 

Mr. President, I have spoken freely of this protest, and of the doctrines 
which it advances; but I have said nothing which I do not believe. Un 
these high questions of constitutional law, respect for my own character, as 
well as a solemn and profound sense of duty, restrains me from givmg ut- 
terance to a single sentiment which does not flow from entire conviction. 1 



31 

feel that I am not wrong. I feel that an inborn and inbred love of constitu- 
tional liberty, and some study of our political institutions, have not, on 
this occasion, misled me. But I have desired to say nothing that should 
give pain to the Chief Magistrate, personally. I have not sought to fix ar- 
rows in his breast; but I believe him mistaken, altogether mistaken, in the 
sentiments which he has expressed; and I must concur with others in placing 
on the records of the Senate my disapprobation of those sentiments. On a 
vote, which is to remain so long as any proceeding of the Senate shall last, 
and on a question which can never cease to be important while the constitu- 
tion of the country endures, I have desired to make public my reasons. 
They will now be known, and I submit them to the judgment of the present 
and of after times. Sir, the occasion is full of interest. It cannot pass off 
without leaving strong impressions on the character of public men. A col- 
lision has taken place, which I could have most anxiously wished to avoid; 
but it was not to be shunned. We have not sought this controversy; it has 
met us, and been forced upon us. In my judgment, the law has been dis- 
regarded, and the constitution transgressed; the fortress of liberty has been 
assaulted, and circumstances have placed the Senate in the breach; and, 
although we may perish in it, I know we shall not fly from it. But I am 
fearless of consequences. We shall hold on, sir, and hold out, till the peo- 
ple themselves come to its defence. We shall raise the alarm, and maintain 
the post, till they, whose right it is, shall decide whether the Senate be a 
faction, wantonly resisting lawful power, or whether it be opposing, with 
firmness and patriotism, violations of liberty and inroads upon the consti- 
tution. 



IBJe'lO 



